A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015).
The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.”
The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products and the mislabeling allegations,” the court said. Accordingly, it dismissed with leave to amend nine claims alleging misrepresentation.
The court then considered whether the plaintiff had standing to challenge products she did not personally purchase, finding preferable the “middle ground approach requiring a plaintiff to allege facts establishing that unpurchased products ‘are so substantially similar’ to purchased products ‘as to satisfy Article III requirements.’” Although the products “are of the same kind: bread,” the plaintiff again failed to clarify which allegations applied to each product, so “she essentially invites the Court to pick and choose among them to concoct a workable combination. There is nothing linking the identified products to the alleged misrepresentations, nor anything delimiting the ‘classes’ of products and the misrepresentations to which they pertain.”
Flowers Bakeries also challenged the plaintiff’s standing for an injunction because she is unlikely to purchase the product again. The plaintiff argued that because the company reformulated some of its products, she is likely to be injured again, but the court disagreed, refusing to grant the requested injunction. The court then dismissed most of the claims but granted leave to amend, and it denied Flowers Bakeries’ motion to dismiss based on preemption and primary jurisdiction because the issue could not be fully explored until the plaintiff amended the misrepresentation claims.